June 09, 2013

The Beating Heart of Veterans Law

Last
week, I covered a lot of background material about veterans benefits. Now it is time to really dig into the
substance of veterans law.

At
its heart, veterans law is a form of administrative law. Deference to the agency is therefore a central
concern. In veterans law, there is the
unique problem of balancing Chevron and
other forms of deference against what is usually referred to as the Gardner presumption, which states that
veterans benefits statutes are to be liberally construed in favor of
veterans. The presumption is named after
Brown v. Gardner, 513 U.S. 115 (1994),
the first Supreme Court case to review a decision originating from the Court of
Appeals for Veterans Claims (CAVC). These two
presumptions do not coexist easily. On
their face, they both provide rules for resolving ambiguity that often lead to
conflicting outcomes, at least in cases that generate litigation.

The
general solution of the courts has been to ignore the problem. The typical tactic is to cite only to the doctrine that supports the outcome chosen.
In cases in which there are dissents or when the CAVC and Federal
Circuit disagree, it is quite common to see both sides proclaim that the plain
language clearly favors their chosen result and simply note parenthetically
that if the language were not clear, then the appropriate cannon would support
the desired outcome. The Federal Circuit
seemed to say in Sears v. Principi,
349 F.3d 1326 (Fed. Cir. 2003), that Chevron
trumps Gardner, but citations to Sears have been conspicuously absent
from most recent cases addressing the issue.
Recent cert petitions have attempted to have the Supreme Court to
resolve the issue, but none have been granted.

One
angle that could be explored is how the rule in Gardner relates to the remedial purposes canon. The Gardner
presumptions certainly seems analogous to this canon. Perhaps there is something to be learned from
such a comparison.

Another
angle to explore is how the Gardner
doctrine developed in the Supreme Court.
The line of cases cited by Gardner
traces to Boone v. Lightner, 319 U.S.
561 (1943). As in modern cases, the
presumption of veteran-friendly interpretation does not seem to do much actual
work. For example, the soldier lost in Boone, yet the Court dropped included
comments such as “[t]he Soldiers’ and Sailors’ Civil Relief Act is always to be
liberally construed to protect those who have been obliged to drop their own
affairs to take up the burdens of the nation,” even while rejecting the soldier’s
argument. My cursory investigation
indicates that not only were these cases written during and shortly after WWII,
but they were drafted by a court composed of many WWI veterans who had a second-row
view of the
Bonus Army fiasco in which veterans and their children were killed on the
National Mall while protesting for unpaid benefits.

As
a third angle, I think there is an open question as to whether the courts’
application of the two doctrines is consistent with their premises and the
separation of powers. Logically, Chevron should have the most power on
procedural issues, as Congress has largely delegated the administration of the
system to the agency. Conversely, Gardner should have the most force when
it comes to the actual definition of benefits, as waiving sovereign immunity
and defining the payments the government are core functions of the legislative branch. Nonetheless, my sense of the case law is that
— at least at the Federal Circuit level — the results are exactly the
opposite. In big money benefits cases
such as Smith v. Nicholson, 451
F.3d 1344 (Fed. Cir. 2006), Haas v. Peake,
525 F. 3d 1168 (Fed. Cir. 2008), and Chandler
v. Shinseki, 676 F.3d 1045 (Fed. Cir. 2012), the court gave deference to
the agency in defining benefits narrowly, but tended to lean heavily on Gardner and the veteran-friendly nature
of the system in dismissing the Secretary’s administrative concerns in making
expansive procedural rulings.

Whether you decide to explore any of these paths, you
cannot be involved in veterans law without confronting the tension between
these cases. In nearly every disputed
case, the Secretary will have some argument for deference, while the veteran’s
advocate will plead for a “friendly” interpretation. Your views of Chevron and Gardner will
heavily affect the answers to many issues that arise. However, it should not be forgotten that what
looks like a reasonable, “veteran friendly” rule given the facts of one case,
may look very different if you are designing a set of rules that will make it
possible for thousands of non-attorney adjudicators to process millions of
claims each year in a timely and accurate fashion.

Comments

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Ah, yes, inconsistent Chevron applications. See: William N. Eskridge & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083, 1090 (2008) (stating “[i]ndeed, from the time it was handed down until the end of the 2005 term, Chevron was applied in only 8.3% of Supreme Court cases evaluating agency statutory interpretations . . . [D]uring this time frame, the Court employed a continuum of deference regimes.”)

I know the Court has been less than fully faithful to Chevron, but are there specific areas where it has routinely relied upon canons that are in as much tension with Chevron as Gardner? I'd be interested in knowing if there is anything that provides for an apt comparison.